Company policies late to adapt to PDA proliferation

With BlackBerrys, laptops, iPhones and other electronic devices becoming more ubiquitous, employees can more easily stay in touch and work from home or while on the road. But company policies regarding use of these technologies haven’t kept pace.

That’s begun to change. Policies related to electronic communications are becoming a more important issue as companies look to limit their exposure to litigation.

“Those companies that have a policy in place are realizing the need to revisit it and update it,” said Karen Randle, a partner at PEAR Staffing, a Woodbury human resources management firm. “And some of those that don’t have one are realizing that this is one area that needs to be addressed.”

Policies regarding the usage of company-issued BlackBerrys, laptops and other devices should include guidelines for their use and should inform employees that disciplinary action, up to and including termination, may be taken for violating the policy.

“The company must make sure the employee clearly understands the devices are company property and that employees should not have any expectation of privacy while using them,” said Randle, who noted that the company has a right to look at any activity that takes place on its communication devices.

“The company’s sexual harassment and other policies extend to the use of company-owned property,” Randle said. “The policy should prohibit the employee from browsing pornographic sites or sites with racist materials or other offensive matter.”

With regard to BlackBerrys and cell phones, the policy should inform employees that if they incur a traffic violation while texting or talking on the phone, it is their responsibility. “The policy should instruct employees not to use the device while driving, so they know it is something the company does not condone,” Randle said.

One of the biggest areas for potential lawsuits involves the use of electronic devices by nonexempt employees, who are paid by the hour and must be compensated for all time worked. In the eyes of the law, nonexempt employees that check and send work-related e-mails from home in the evening or on the weekends are working, whether or not they were told to do so, and they are entitled to compensation.

“The culture might be such that employees feel they must keep in contact 24/7, even though they are not asked directly to do so,” said Dawn Davidson Drantch, director of employee relations and internal counsel for The Alcott Group, a professional employer organization in Farmingdale.

Wage-and-hour law suits involving the Fair Labor Standards Act are on the increase. According to the 2009 Law360 Litigation Almanac published by Manhattan-based Portfolio Media Inc., such litigations rose by 5 percent in 2008 and are expected to increase further in 2009 due to large numbers of terminations.

“Class-action wage-and-hour suits are huge now,” Davidson Drantch said. “If you start multiplying hours spent working on the weekends by multiple employees over multiple months, plus penalties, it adds up to a lot of money.”

If employers are aware or should have been aware that an employee is working, they have to pay him for the time, said Jeffrey Brecher, a partner in the Melville office of Jackson Lewis, a national labor and employment law firm. “If employees are given BlackBerrys or access to the company computer system after work hours, the company should have knowledge if they are using them,” he said.

To avoid potential problems, the most conservative and easy approach, said Brecher, is for companies to avoid issuing BlackBerrys to nonexempt employees and to prohibit them from performing any work outside of work hours.

“Companies can limit access to company e-mail from outside sources,” Brecher said. “Either they can allow only exempt employees to access the server remotely, or they can only allow nonexempt employees to access it during work hours.” If a nonexempt employee works out in the field and requires a BlackBerry, Brecher said, the policy can state that the employee is prohibited from using it during nonwork hours.

Employees who work when not authorized should be paid for their time but disciplined, just as they would for any other violation of company policy, Brecher said.

“It’s common sense that the employee does not decide when the work day begins and ends,” Brecher said. “The employer decides.”